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Kinsman v. Director of Revenue7/24/2001
l result, Jackson County Board of Elec. Comm'rs v. Paluka, 13 S.W.3d 684, 690 (Mo. App 2000). However, the fact that we assume there is an implied right of the purported driver to show that he or she was not in fact driving does not mean that the Director's initial burden is any more than a mere showing of probable cause. It is not enough for the person who allegedly refused the breath test to simply argue that the Director did not prove he was driving. Therefore, in this case, if the Director showed that the officer had reasonable grounds to believe Kinsman was driving, Kinsman cannot simply criticize the Director's evidence on the basis that it is not conclusive; he has a duty to present evidence that he was not driving if he wishes to shift the inquiry from the probable cause issue.
In Berry v. Dir. of Revenue, 885 S.W.2d 326 (Mo. banc 1994), the Director presented evidence that the officer had probable cause to believe Berry was driving while intoxicated. The officer testified that he arrived at the scene of a collision, made observation of items indicating Berry was intoxicated, offered Berry the test, and Berry refused. Berry testified that because of the pain he was suffering at the time as a result of the collision, he had no vivid memory of the accident scene. He testified he did not recall any communication with the officer, however. The trial court held the Director failed to sustain his burden, and ordered the reinstatement of Berry's license. The Supreme Court reversed, holding there was no evidentiary support for a finding that the officer lacked probable cause to arrest Berry. Id. at 328. Thus, we conclude that when the Director has presented evidence showing probable cause, and the record contains no contrary evidence, it is against the weight of the evidence for the trial court to reach a contrary result.
There was no dispute here as to whether Kinsman refused the test. The sole issue tried before the court in this case was whether the officer had probable cause to believe that Kinsman was driving while intoxicated. In examining the existence of probable cause, the trial court is to consider the information possessed by the officer before the arrest and the reasonable inferences the officer would have drawn therefrom. Wilcox v. Dir. of Revenue, 842 S.W.2d at 255. In our review, we determine whether the judgment was unsupported by the evidence, against the weight of the evidence, or an erroneous application of the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Berry v. Dir. of Revenue, 885 S.W.2d 326, 328 (Mo. banc 1994).
Reasonable Grounds
The Director argues that the pertinent facts, when added together, show that the officer had reasonable grounds to believe Kinsman had been driving the van. The Director points out that Trooper Thuss testified it took him only a few minutes to arrive at the scene after the report, and Trooper Blankenship arrived only a few minutes after that. The Director suggests that because of the dangerous position of the upside-down cab on the roadway of 40 Highway, and the proximity of the convenience store, it would have appeared unlikely to the officers that there was a significant delay in the reporting of the crash. The officers would have inferred that probably either the proprietor or a customer of the store called in the accident at the time it happened or shortly thereafter.
The cab was checked out to Kinsman. Kinsman had fresh cuts and blood on both hands, which would seem consistent with an attempt to get out of an upside-down vehicle that had rolled over. His clothes were "messy." The store customer and clerk obviously understood Kinsman was connected to the crash of the vehicle. Kinsman denied
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